IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 18, 2009
No. 08-60755 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MACEO SIMMONS
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
Before KING, STEWART, and SOUTHWICK, Circuit Judges.
Leslie H. Southwick, Circuit Judge:
Maceo Simmons was convicted of aggravated assault under color of state
law, and the district court sentenced him to 240 months in prison. On appeal,
we affirmed his conviction but remanded for resentencing. United States v.
Simmons, 470 F.3d 1115 (5th Cir. 2006) (“Simmons I”). On remand, the district
court conducted a hearing and resentenced Simmons to life in prison. Simmons
appeals from the resentencing. We again VACATE and REMAND.
I. BACKGROUND
The facts surrounding Simmons’s conviction were summarized in the
earlier appeal. See id. at 1118-19. We need not repeat them here. At the
sentencing for that conviction, Simmons objected to a two-level enhancement
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under a section of the Sentencing Guidelines that accounts for circumstances in
which the victim is in the custody, care, or supervisory control of the defendant.
See U.S.S.G. § 2A3.1(b)(3)(A). The district court sustained the objection,
bringing Simmons’s offense level to 41. That offense level, combined with a
criminal history category of I, placed Simmons’s guideline range at 324 to 405
months in prison. After remarking on the fact that Simmons was then 48 years
old, the district court decided to impose a 240 month, or 20 year, sentence.
Simmons appealed the conviction. We affirmed. Id. at 1118. The
government cross-appealed the sentence. After finding the district court to have
erred in refusing to apply the enhancement, we vacated and remanded for
resentencing. Id. at 1130. No ruling was made on whether the district court
improperly focused on Simmons’s age rather than the required sentencing
factors. See 18 U.S.C. § 3553(a). We did make comments about possible error
on those grounds, which we will discuss below. Simmons, 470 F.3d at 1130.
On remand, Simmons requested a stay until after the Supreme Court
decided Gall v. United States, 128 S. Ct. 586 (2007). The district court obliged.
The resentencing was held in August 2008. This time, after the two-level
enhancement was applied, Simmons’s offense level was 43. When considered
alongside a criminal history category of I, this translated into life imprisonment
under the Guidelines. Simmons requested that the district court reimpose a 20
year sentence; the government urged the court to impose the life sentence.
The district court imposed a life sentence. Simmons has appealed.
II. DISCUSSION
A. Standard of Review
The first consideration in our review of the reasonableness of a sentencing
decision is whether the district court committed a significant procedural error,
such as failing to calculate or incorrectly calculating the Guidelines range,
treating the Guidelines as mandatory, or failing to consider the Section 3553
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sentencing factors. Gall, 128 S. Ct. at 597. If a sentence is procedurally sound,
we “consider the substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard.” Id.
Simmons focuses on the first consideration, arguing that his sentence is
procedurally flawed. When a defendant raises his procedural complaint in the
district court, “the reviewing court examines the district court’s interpretation
or application of the Sentencing Guidelines de novo, and its factual findings for
clear error.” United States v. Armstrong, 550 F.3d 382, 404 (5th Cir. 2008). If,
however, the procedural objection was not presented in the district court, our
review is for plain error only. United States v. Lopez-Velasquez, 526 F.3d 804,
806 (5th Cir. 2008). “This rule ‘serves a critical function by encouraging
informed decisionmaking and giving the district court an opportunity to correct
errors before they are taken up on appeal.’” Id. (quoting United States v. Peltier,
505 F.3d 389, 392 (5th Cir. 2007)).
We reject the government’s request for plain error review in this case. The
entire resentencing focused on the district court’s discretion, following Simmons
I, to grant a sentence outside the Guidelines. Because the district court was
presented with an opportunity to consider the issue now before this court, we
will review the district court’s application of the Guidelines de novo.
B. Procedural Unreasonableness
At the first sentencing hearing, the district court imposed a 20 year
sentence, even though the Guidelines called for a greater sentence. As grounds
for its decision, the district court stated “that a term of imprisonment of 20 years
for a man who is 48 years old is a sufficient sentence.”
In reviewing that sentence, our Simmons I opinion pointed to the following
Guideline policy statement: “Age . . . is not ordinarily relevant in determining
whether a sentence should be outside the applicable guideline range [but] may
be a reason to [depart downward] when the defendant is elderly and infirm.”
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470 F.3d at 1131 (emphasis in original) (quoting U.S.S.G. § 5H1.1 (1998)). We
further explained that our circuit had rejected an age-based rationale prior to
Booker, but that post-Booker, the issue had not been addressed. Id. We did not
find in Simmons I that considering age as a factor in sentencing was per se
unreasonable under Booker, but we did note that “a district court’s sentencing
discretion, and our reasonableness-inquiry on appeal, must be guided by the
sentencing considerations stated in 18 U.S.C. § 3553(a),” including “any
pertinent policy statement . . . issued by the Sentencing Commission.” Id.
(citations omitted).
Consequently, “a district court should acknowledge a relevant policy
statement and explain why the prohibited or discouraged factor, as it relates to
the defendant, is so extraordinary that the policy statement should not apply.
A district court’s failure to do so bears on the reasonableness of the sentence it
imposes . . . .” Id. (citations omitted).
The district court’s statement of reasons is important for our review of the
sentence. We quote the relevant portion of the second sentencing hearing:
The court has found that the sentencing guideline range
under the sentencing guidelines is a sentence of life imprisonment.
The court finds that you should be resentenced at this time to a
sentence of life imprisonment within the guideline range.
The court earlier and still holds the opinion that a life
sentence is a sentence that is unnecessarily harsh. However, the
court at that time and at this time has no reason to recommend a
variance from the guidelines except based on age.
The argument on the other side of the matter is that this
crime was committed in 1999, almost ten years ago; you were not
tried and sentenced until 2005 in this court; and [the victim] has
suffered with this matter daily since its occurrence in 1999.
The sentencing commission has set the guideline. Obviously,
there is no excuse for this crime or this type of crime; and the court
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feels that it has no reason to grant a variance other than what has
already been expressed. The court reads into the Fifth Circuit
opinion that was rendered in this case and remanded to the court
that age alone is not a sufficient reason to vary. Accordingly, the
court imposes a sentence of life imprisonment.
Simmons argues that our Simmons I opinion misdirected the court at the
sentencing conducted after remand. Such error allegedly occurred because we
had referred to the need for “‘extraordinary’ circumstances to justify a sentence
outside the Guidelines range,” a standard that the Supreme Court later rejected.
See Gall, 128 S. Ct. at 594-95. Without any doubt, the requirement of
“extraordinary circumstances” is no longer the law. See United States v.
Rodriguez-Rodriguez, 530 F.3d 381, 384 n.4 (5th Cir. 2008). However, there is
no indication from the second sentencing hearing that the district court erred in
that manner. It is true that the district court stated that it read into Simmons
I “that age alone is not a sufficient reason to vary.” It is important, though, that
the district court waited to sentence until after the Supreme Court’s decision in
Gall. That is the opinion that expressly rejected our former “extraordinary
circumstances” requirement. See id. The Gall opinion was debated in detail at
the resentencing hearing. The death of the “extraordinary circumstances”
language from Simmons I was clear.
The district court also found that his disagreement with the Guideline
policy statement that refers to age in terms of old and infirm defendants was not
an appropriate consideration in setting a sentence. That view is inconsistent
with recent Supreme Court precedent. In one key recent decision, the district
court had departed downward from the crack cocaine Guideline range and
imposed the statutory minimum sentence. Kimbrough v. United States, 128 S.
Ct. 558, 565 (2007). In so doing, the district court noted its disagreement with
the Guidelines’ crack/powder disparity and held that the statutory minimum
was “clearly long enough” to accomplish the objectives of Section 3553(a). Id.
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The Supreme Court upheld the sentence, explaining that “it would not be an
abuse of discretion for a district court to conclude when sentencing a particular
defendant that the crack/powder disparity yields a sentence ‘greater than
necessary’ to achieve § 3553(a)’s purposes . . . .” Id. at 575.
We have had occasion to consider Kimbrough’s impact in this circuit. See
United States v. Burns, 526 F.3d 852 (5th Cir. 2008). In Burns, the district court
imposed a sentence within the Guidelines after the defendant was convicted of
conspiracy to possess with intent to distribute cocaine base and two counts of
aiding and abetting the distribution of cocaine base. Id. at 855-56. In denying
the defendant’s request for a departure based on the crack/powder disparity, the
district court provided the following explanation:
[T]he guidelines are what the guidelines are today. . . . The Court
finds that the facts do not warrant a downward departure . . . for
taking into consideration the difference between crack cocaine
crimes under the guidelines and cocaine offenses under the
guidelines as a decision that’s been made by the Congress of the
United States and the Sentencing Commission. . . . The Court finds
it has no-limited discretion, if any. And if I do have discretion, I
exercise my discretion not to downward depart on that basis.
Id. at 860-61. Following Kimbrough, we reversed and remanded. Id. at 861-62.
We held that “we cannot tell from the record whether, if the judge had known he
could consider the policy disagreement as an additional factor in the ‘array of
factors warranting consideration’ in his analysis under 18 U.S.C. § 3553(a), it
would have affected the ultimate sentence imposed on Burns.” Id.
At the resentencing in this case, Simmons urged the district court to
consider its earlier disagreement with the Guideline policy statement regarding
age and to reimpose the 20 year sentence given at the first sentencing. When
the district court stated doubts about its authority to do so, Simmons argued
that Kimbrough permitted Guideline policy disagreements to be considered as
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No. 08-60755
sentencing factors. The district court responded by explaining why it believed
the Kimbrough decision to be a narrow one:
[T]he crack guidelines had some -- there was almost political drive
behind the opposition to the crack guidelines; whereas, it’s nothing
other than just a pure evaluation here of at what point a case such
as this breaks off into a life sentence. And this has done that under
the guidelines.
The district court unduly limited its own discretion. Kimbrough does not
limit the relevance of a district court’s policy disagreement with the Guidelines
to the situations such as the cocaine disparity and whatever might be considered
similar. In Kimbrough, the Court referred to the following concession made by
the government: “the Guidelines are now advisory and . . . , as a general matter,
courts may vary [from Guidelines ranges] based solely on policy considerations,
including disagreements with the Guidelines.” Kimbrough, 128 S. Ct. at 570
(emphasis added) (internal quotation marks omitted). The Court added,
however, that the appellate court may need to conduct a “closer review” if the
judge has varied from the Guidelines because of a belief that the resulting
sentence range, even in an unexceptional case, is inconsistent with Section
3553(a) factors. Id. at 575.
Whatever else in Kimbrough might require further case development, it
is evident that the Supreme Court held that a district court’s policy
disagreement with the Guidelines is not an automatic ground for reversal. See
id.; see also Lindsay C. Harrison, Appellate Discretion and Sentencing after
Booker, 62 U. M IAMI L. R EV. 1115, 1136 (2008). The Court also required a more
intense review when the district court declares a properly calculated sentencing
range to be inconsistent with the Guidelines’ policy factors even for an ordinary
case. Kimbrough, 128 S. Ct. at 575. If the concern instead is about the
suitability of the sentence under the special conditions of a particular offender,
the Court did not state that “closer review” is needed.
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Therefore, the district court’s disagreement with the policy statement
concerning age as applied to this defendant’s case is relevant to the sentencing
decision. Consideration of a policy statement is among the factors under Section
3553(a). Disagreement with the policy should be considered along with other
factors. See id. After deciding that a sentence outside the Guidelines range is
justified, the court “must consider the extent of the deviation and ensure that
the justification is sufficiently compelling to support the degree of variance.”
Gall, 126 S. Ct. at 597. Once those thought processes lead to a decision on the
proper sentence, the court must explain itself in such as way as to permit
“meaningful appellate review” and satisfy the need that sentencing fairness be
perceived. Id.
Our opinion in Simmons I obviously predated Kimbrough and Gall. The
district court quite properly avoided the part of our earlier decision that was
overtaken by these decisions, namely, the need for finding circumstances that
were extraordinary before giving a sentence that was outside the Guidelines.
We also find, though, that the district court thought itself restricted by our
suggestion that age might be a factor to depart downward only when a defendant
is elderly. Simmons I, 470 F.3d at 1131(citing U.S.S.G. § 5H1.1 (1998)). After
Kimbrough, what is necessary is that a court explain its reasons for disagreeing
with the Guidelines’ policy considerations. If the court believes there to be
situations in which age should be considered for defendants who are not old and
infirm, then an explanation of that disagreement is appropriate.
We find two points fairly clear from this record. The first is that the
district court found that a life sentence was not justified in this case, based on
the particular circumstances of this defendant. The second is that the district
court gave a life sentence because it found the discretion that it wanted to
exercise hamstrung by our guidance in Simmons I. That was error. District
courts trying to follow circuit court rulings at times have a difficult task. It was
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a particularly difficult task in this case because of the intervening Supreme
Court decisions.
Accordingly, we vacate the sentence and remand in order that Simmons
may be sentenced again.
On remand, the district court must determine whether (1) to impose a life
sentence, as it did at resentencing, or (2) grant a lesser sentence. We make no
suggestion on which course the district should take. That sentencing decision
is to be made within the broad discretion the court is given and justified within
the principles set out in this opinion and the precedents on which we rely.
III. CONCLUSION
Simmons’s sentence is VACATED, and we REMAND for resentencing.
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